Boissoin v. Lund, 2009 ABQB 592

IN THE MATTER OF THE ALBERTA HUMAN RIGHTS, CITIZENSHIP AND MULTICULTURALISM ACT, R.S.A. 2000, c.H-14 AND IN THE MATTER OF A DECISION OF A PANEL OF THE ALBERTA HUMAN RIGHTS AND CITIZENSHIP COMMISSION IN REGARDS TO COMPLAINT NO.

S.2002/08-0137

Between:

Stephen Boissoin and the Concerned Christian Coalition Inc.

Appellants

- and -

Darren Lund

Respondent

- and -

The Attorney General of Alberta, Canadian Civil Liberties Association and Canadian

Constitution Foundation

Interveners

_______________________________________________________

Reasons for Judgment

of the

Honourable Mr. Justice E.C. Wilson

_______________________________________________________

Page: 2

To be clear, “sexual orientation” was not l 1 anguage found in this legislation. It was, however, added to the list of prohibited grounds of discrimination as a result of the decision in Vriend v. Alberta [1998] 1 S.C.R. 493. (It has been subsequently legislated into place by Alberta in 2009).

Introduction

[1] This is a judicial review of a decision of an Alberta Human Rights Panel [the Panel] which found that the Appellant and The Concerned Christian Coalition Inc., an organization

related to the Appellant had, in a letter to the editor of a newspaper published June 17, 2002, expressed comments likely to expose homosexuals to hatred and/or contempt due to their sexual orientation. [2] The comments were found by the Panel to have violated s. 3(1)(b) of the Alberta Human Rights, Citizenship and Multiculturalism Act [the Act] which, in its pertinent terms, reads as follows:

“No person shall publish ... or cause to be published ... before the public any statement ... that ... is likely to expose a person or a class of persons to hatred or contempt because of the ... sexual orientation ... of that person or class of persons.”1

[3] The Appellant advances a number of complaints which argue (i) that the legislation is ultra vires; (ii) that the legislation violates s. 2(a) & (b) of the Charter of Rights and cannot be saved by s. 1 of the Charter; (iii) that the letter’s contents were not hateful or contemptuous of homosexuals and, in any event, were protected speech under the Charter and (iv) that the remedies imposed were unlawful or unconstitutional. The Appellant also submits that the process leading up to the Panel’s decision was flawed and that the Panel was wrong to have found that the Concerned Christian Coalition Inc. had also violated the Act.

[4] I permitted the intervention of several parties. Additionally, the Attorney General of Alberta appeared due to the constitutional challenges raised by the Appellant. The Attorney General of Canada declined to intervene.

[5] The Intervener Canadian Constitution Federation supported the Appellant’s claim that the impugned legislation was ultra vires the Province. The Intervener Canadian Civil Liberties Association supported the Appellant’s claim that the impugned legislation violated s. 2(a) & (b) of the Charter and could not be saved by s. 1.

[6] Alberta’s position was that the legislation was intra vires the Province and that, while the legislation did violate s. 2(b) of the Charter, it was saved by s. 1.Page: 3 2[2008] A.J. No. 830 (C.A.).

[7] The Respondent’s initial position disagreed with all of the Appellant’s claims. However, during argument, counsel conceded some legal deficiencies in the remedies granted by the panel.

[8] In the reasons that follow I conclude that the legislation is intra vires the Province and does not violate the Charter. I also find that the contents of the letter to the editor do not violate s. 3(1)(b) of the Act. I further conclude that the remedies imposed by the Panel were either unlawful or unconstitutional. Finally, I will provide my observations regarding various troubling aspects of the process leading to the decision of the Panel, including my finding that the Panel was wrong in holding that the Concerned Christian Coalition Inc., was properly before it; alternatively, wrong in holding that that organization had violated the Act.

The Appeal from the Panel’s Decision

[9] The pertinent provisions of the Act are as follows: 37(1) A party to a proceeding before a human rights panel may appeal an order of the panel to the Court of Queen’s Bench by originating notice filed with the clerk of the Court of the judicial district in which the proceedings was held. . . .

(4) The Court may (a) confirm, reverse or vary the order of the human rights panel and make any order that the panel may make under section 32, or (b) remit the matter back to the panel with directions.

Remedies are detailed in s. 32 of the Act.

[10] The Act makes no reference as to the grounds upon which an appeal may be brought. However, it is clear that the nature of the appeal is what is described as a judicial review.

Standard of Review

[11] This issue has been decided in Walsh v. Mobil Oil Canada:2 55 In our view, in light of Albert’s human rights legislation, the existing case law answers the question of standard of review, at least in a general sense. It indicates that human rights tribunals, such as the panel in this case, may be afforded some deference with respect to findings of fact and credibility, given their role in hearing viva voce evidence. However, reviewing courts will be unconstrained in Elgie v. Alberta (Workers’ Compensation, Appeals Commission), 2009 ABCA 277, para’s 32, 34.

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